| [2016] FWCFB 9074 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 19 DECEMBER 2016 |
4 yearly review of modern awards - common issue - annual leave - timing of taking of leave - Maritime Industry awards and various other modern awards - insertion of model terms –variation determinations
[1] This decision finalises a number of outstanding matters in relation to the variation of annual leave terms in modern awards and should be read in conjunction with previous decisions issued on 11 June 2015 1 (the June 2015 decision), 15 September 20152 (the September 2015 decision), 23 May 20163 (the May 2016 decision), 24 June 20164 (the June 2016 decision) and 22 September 20165 (the September 2016 decision).
[2] In the September 2016 decision we expressed provisional views in relation to the insertion of the model annual leave terms into a number of modern awards. Draft variation determinations were published on the Commission’s website and parties were provided with an opportunity to comment on the draft determinations. This decision deals with comments received from interested parties and finalises the determinations for the relevant modern awards.
[3] No comments were received regarding the insertion of the model excessive leave term in the 16 modern awards set out below:
[4] We confirm our provisional view and will now issue final determinations varying the above 16 awards.
[5] A submission 6 was received from the Australian Industry Group (Ai Group) regarding the following two awards:
[6] In relation to the Mobile Crane Hiring Award 2010, Ai Group submit that there is a tension between the excessive leave provisions and the broken leave provision in the proposed re-draft of the annual leave provision in the award. 7 It submits that the current drafting is unclear as to whether or not the clauses are intended to be read together and whether the broken leave provisions are to apply to the excessive leave provisions. The two provisions are not intended to be read together. To remove any ambiguity in this regard we will rearrange the order of the subclauses in clause 25 and the broken leave provisions will be under a separate heading – ‘Arrangements for taking leave’.
[7] Ai Group also submit that the proposed clause 25.5(e) in the draft determination be deleted as it contains the words “payment will not be made or accepted instead of annual leave”. They submit that these words appear to prohibit the cashing out of annual leave and are inconsistent with the cashing out provisions inserted into the award. 8 We agree, and 25.5(e) will be deleted from the draft determination.
[8] A revised draft determination varying the Mobile Crane Hiring Award 2010 will be issued and interested parties will have until 4pm on Tuesday 31 January 2017 to comment.
[9] In relation to the draft determination varying the Premixed Concrete Award 2010, Ai Group point out a typographical error at item 6. They submit that the reference to clause 24.6(b) in clause 24.7(a) at item 6 should be to clause 24.5(b). They submit clause 24.7(a) refers to an employee genuinely trying to reach agreement with an employer around reducing excessive leave and it is clause 24.5(b), not clause 24.6(b), that sets out the ability for an employee and employer to try to reach such agreement. We agree. The final determination, correcting the typographical error identified by Ai Group will now be issued.
The ‘Maritime Industry Awards’
[10] In the May 2016 decision we decided to give further consideration whether six modern awards in the maritime industry (the ‘Maritime Industry Awards’) should be varied to include some or all of the model annual leave terms. The ‘Maritime Industry Awards’ are the:
[11] A background paper and directions were issued prior to a hearing on 1 July 2016. At the hearing, the Australian Mines and Metals Association (AMMA), the Maritime Industry Australia Ltd (MIAL) and the Maritime Union on Australia (MUA) were granted an adjournment to provide further submissions and evidence in support of their position. The parties were requested to provide consolidated submissions, replacing their earlier submissions, addressing the issues set out in the May 2016 decision. Relevantly, paragraphs [235] to [237] of the May 2016 decision states:
‘On 8 July 2016 directions were issued setting timeframes for the submissions and noted that the matter would be finalised on the basis of submissions filed, without a further hearing. AMMA and MIAL filed a joint submission on 12 August 2016. The MUA filed a separate submission on the same day’
[12] In the September 2016 decision, we decided that the Dredging Industry Award 2010 and the Ports, Harbours and Enclosed Water Vessels Award 2010 would be varied to insert the excessive leave, leave in advance and cashing out model terms. Draft determinations for both awards were issued and interested parties were provided an opportunity to comment. No comments were received and we will now issue the determinations varying these awards.
[13] In relation to the Ports, Harbours and Enclosed Water Vessels Award 2010, we expressed the provisional view that clause 22.4 of the award would also be deleted. AMMA and MIAL did not oppose this deletion. 9 A determination will now issue and the award varied.
[14] In the September 2016 decision we expressed some provisional views in respect of the remaining outstanding issues in the Maritime Industry Awards. Interested parties were provided with an opportunity to contest the provisional views set out in that decision. A joint submission was received from AMMA and the MIAL on 7 October 2016 10.
[15] In the September 2016 decision we expressed a provisional view that the Marine Towage Award 2010, the Maritime Offshore Oil and Gas Award 2010, the Professional Diving (Industrial) Industry Award 2010 and the Seagoing Industry Award 2010 would be varied to insert the cashing out and leave in advance model terms. 11 MIAL and AMMA did not oppose the inclusion of the model terms into these awards12 and the determinations will now be issued and the awards varied. For the reasons given in the September 2016 decision (at [132] – [140]) these awards will not be varied to insert the excessive leave model term.
[16] The variation of the Professional Diving (Industrial) Industry Award 2010 to insert the excessive leave model term has been deferred until after the award has been reviewed in the award stage of the review. 13
Air Pilots Award 2010 and Aircraft Cabin Crew Award 2010
[17] In the May 2016 decision, it was decided to defer consideration of whether the two above awards in the airline industry should be varied to insert the model ‘excessive leave’ clause to provide interested parties with an opportunity to consider their position.
[18] The two awards have been listed for conference before Deputy President Gostencnik on 9 February 2017. The purpose of this conference is to deal with technical and drafting issues. Ai Group has requested 14 that the matter be referred to the Deputy President for the purposes of discussions at the February conference. We agree, the excessive leave issue will be referred to the Deputy President as requested.
Aquaculture Industry Award 2010
[19] In the September 2016 decision we decided to vary the Aquaculture Industry Award 2010 by deleting existing clause 23.4 and inserting the model excessive leave term. It was also decided that clause 23.3 of the award should be varied. Clause 23.3 provides that employees may be directed to take annual leave where their employer ‘intends temporarily to close (or reduce to nucleus) the place of employment or a section if it’, as follows:
‘Where an employer intends temporarily to close (or reduce to nucleus) the place of employment or a section of it for the purpose, amongst others, of allowing annual leave to the employees concerned or a majority of them, the employer may give those employees one month’s notice in writing of an intention to apply the provisions of this clause. In the case of any employee engaged after notice has been given, notice must be given to that employee on the date of their engagement.’
[20] As mentioned in the September 2016 decision, it appears that clause 23.3 is not widely utilised in practice, in part because of the way it is drafted. It was proposed that the provision be redrafted, in plain language, in order to make the provision more accessible for small business operators. The proposed variation of clause 23.3 was included in the draft variation determinations issued after the September 2016 decision and interested parties were provided with an opportunity to comment on the draft variation determination.
[21] The redrafted clause 23.3 (the close down provision) makes it clear that it operates where seasonal factors reduce labour requirements.
[22] Ai Group submit 15 that the redrafted clause 23.3 no longer specifies how much leave is to be taken during a period of close down when employees have annual leave accrued. Ai Group submit that the words ‘for all or part of the period of close down’ in the redrafted clause are ambiguous and seem to give employees with accrued annual leave the ability to only take annual leave for part of the period of close down.’16
[23] We agree with Ai Group, there is a degree of ambiguity in the redrafted clause 23.3. Ai Group propose the amendment of paragraphs 23.3(c) and 23.3(d) of the draft determination as follows:
‘23.3(c) An employee who has accrued sufficient annual leave to cover all of the close down must take annual leave for all of the close down.
23.3(d) An employee who has not accrued sufficient annual leave to cover all of the close down must take any annual leave they have accrued and leave without pay or leave in advance for the rest of the close down.’
[24] We will issue a final determination varying the award to delete clause 23.4 and insert the model excessive leave term. A revised draft variation determination will be issued in relation to the variation of clause 23.3. Interested parties will have until 4.00 pm on Tuesday 31 January 2017 to comment on the revised draft variation determination.
[25] We also note that 17 other modern awards contain a close down provision in similar terms to clause 23.3 of the Aquaculture Industry Award 2010. A list of these modern awards are set out at Attachment 1. It is our provisional view that the close down provisions in the 18 modern awards set out in Attachment 1 should be varied in a similar manner to that proposed in respect of the Aquaculture Industry Award 2010. Interested parties will have until 4.00 pm on Tuesday 31 January 2017 to comment on our provisional view.
Black Coal Mining Industry Award 2010
[26] Following the September 2016 decision, a draft determination was published varying the Black Coal Mining Industry Award 2010 (BCMI Award) and interested parties were given 28 days to comment on the variation. The draft determination deleted clause 25.4 in its entirety and varied the award to insert the revised excessive leave model term, subject to a modification to the definition of ‘excessive leave’ having regard to the level of annual leave entitlements under the award. Introductory words in clause 25.10 were also inserted to make it clear that the shutdown term operates independently of the excessive leave term.
[27] Two submissions were received in respect of the draft determination, from the Coal Mining Industry Employer Group (CMIEG) and the Construction, Forestry, Mining and Energy Union (CFMEU). CMIEG submits that the references in clause 25.4 and 25.6 to the amount of employees annual leave accrual should be in ‘hours’ and ‘weeks’ as this is consistent with other provisions in the BCMI Award. 17 The draft determination currently only references weeks. The CFMEU are not opposed to this amendment.18 For consistency with the current annual leave subclauses in the award, the determination will be amended to express the annual leave accrual in both hours and weeks, as proposed by CMIEG.
[28] In their submission the CMIEG raised an issue with the shut-down clause in the BCMI award. A further conference was held on 25 November 2016 before Commissioner Hampton to deal with the issue. The CMIEG argue that clause 25.4(c) in the current award involves the power to direct employees to take leave. This has been removed and they submit that the removal changes the context in which the shut-down clause is to operate. The CMIEG propose an amendment to clarify the relationship between the shut-down clause and the other annual leave subclauses, and also propose to insert a clause permitting employers to direct leave during a shut-down. 19
[29] The CFMEU, “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Association of Professional Engineers, Scientists and Managers, Australia do not agree with the CMIEG and submit that the change proposed goes beyond the Full Bench decision and is an attempt to reintroduce the former clause 25.4(c). These parties also submit that the proposed clause is inconsistent with the NES on the basis that the September 2016 decision (at [76]) stated that an award term directing an employee to take all or part of the accrued paid leave on the provision of 28 days’ notice in writing, without other considerations or requirements, is not reasonable within the meaning of s.93(3). 20
[30] At the conclusion of the 25 November conference, the parties sought a further opportunity to put submissions regarding the proposed change. Interested parties will have until 4.00 pm on Tuesday 31 January 2017 to file additional submissions on the proposed shut-down clause being advanced by the CMIEG and the related issues. Submissions should be sent to amod@fwc.gov.au If required, a short hearing will be conducted by the Full Bench in February 2017 and parties will be advised.
Textile, Clothing, Footwear and Associated Industries Award 2010
[31] In the May 2016 decision the Full Bench determined that the excessive leave model term in the Textile, Clothing, Footwear and Associated Industries Award 2010 would be the subject of further consideration later in the year 21. This decision was taken because a recent amendment had been made to clause 41.4 of the award which allowed an employer to direct an employee to take excessive accrued annual leave22.
[32] For the reasons given in the May 2016 decision and the June 2016 decision about the excessive leave model term generally, we express the provisional view that the variation of the Textile, Clothing Footwear and Associated Industries Award 2010 to delete existing clause 41.4 and to insert the model excessive leave term is necessary to ensure that the award meets the modern awards objective. As to the matters in s.134(1)(a)–(h), insofar as they are relevant, we express the provisional view that the insertion of the model term in this award will promote flexible modern work practices and the efficient and productive performance of work (s.134(1)(d)) and will assist business in managing excessive leave accruals (s.134(1)(f)). We are also provisionally satisfied that such variations are consistent with the objects of the FW Act.
[33] A draft variation determination will be issued shortly. Interested parties will have until 4.00 pm on Tuesday 31 January 2017 to provide any comment on the draft determination and the provisional view. Submissions should be sent to amod@fwc.gov.au
[34] In the absence of any submissions opposing the provisional view, a final determination varying the award will be made.
PRESIDENT
Appearances:
Mr P Sebbens for Coal Mining Industry Employer Group with Mr Gunsberg
Ms G Kusuma for the New South Wales Farmers Industrial Association
Mr A Thomas for the Mining and Energy Division of the Construction, Forestry, Mining and Energy Union
Mr T Pacey for the Professionals Australia Collieries Division
Mr S Crawford for AWU
Mr S Barklamb for the Australian Mines and Metals Association
Hearing details:
2016.
Sydney, Melbourne (video hearing):
September 13.
ATTACHMENT 1—18 modern awards containing a close down provision
It is our provisional view that the 18 awards listed above be amended in line with the Aquaculture Industry Award 2010 (see [25]). If any interested party has an alternate view, they are to advise the Commission by no later than 4.00 pm on Tuesday 31 January 2017. Draft determinations will be issued with a further opportunity for interested parties to comment.
6 Ai Group submission, 20 October 2016.
7 Ai Group submission, 20 October 2016 at para 12.
8 Ai Group submission, 20 October 2016 at para 16.
9 MIAL and AMMA submission, 7 October 2016 at paras 1(a) and 5.
10 MIAL and AMMA submission, 7 October 2016.
11 See [2016] FWCFB 6836 at paras [145], [148] and [153].
12 MIAL and AMMA submission, 7 October 2016 at paras 1(b)-(e) and 6-21.
13 [2016] FWCFB 6836 at [152].
14 Ai Group Correspondence, 8 December 2016.
15 Ai Group submission, 20 October 2016.
16 Ai Group submission, 20 October 2016 at para 9.
17 CMIEG submission, 21 October 2016 at para 4.
18 CFMEU Correspondence, 25 October 2016.
19 CMIEG submission, 21 October 2016 at paras 5-9.
20 Transcript, 25 November 2016 at PN107.
21 Ibid at para [95]
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